National Labor Rel. Board v. Brown-Brockmeyer Co.

• Decision Date: 31 May 1944
• Docket Number: No. 9656.,9656.
• Citation: 143 F.2d 537
• Parties: NATIONAL LABOR RELATIONS BOARD v. BROWN-BROCKMEYER CO.
• Court: U.S. Court of Appeals — Sixth Circuit

143 F.2d 537 (1944)

NATIONAL LABOR RELATIONS BOARD v. BROWN-BROCKMEYER CO.

No. 9656.

Circuit Court of Appeals, Sixth Circuit.

May 31, 1944.

Louis Libbin, of Washington, D. C. (Alvin J. Rockwell, Howard Lichtenstein, Ida Klaus, and William T. Whitsett, all of Washington, D. C., on the brief), for petitioner.

John M. Sprigg and R. A. Argabright, both of Dayton, Ohio (Carroll Sprigg, of Dayton, Ohio (deceased), on the brief), for respondent.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order issued May 29, 1943, in which it found that the respondent has engaged and is engaging in unfair labor practices affecting commerce within the meaning of § 2(6) and (7) and § 8(1) and (2) of the National Labor Relations Act, 29 U.S.C.A. §§ 152(6, 7), 158(1, 2), and directed the respondent to cease and desist from the unfair practices and to take certain affirmative action. The Board found that the respondent discouraged membership in the United Electrical, Radio and Machine Workers of America, Congress of Industrial Organizations affiliate, hereinafter called the Union, and dominated and interfered with the formation and administration of the B-Line Employees Association, hereinafter called the B-Line, by facilitating its initiation and by openly favoring it over the Union, as well as by openly discrediting the Union. The respondent contends that there is no substantial evidence to support these findings.

Respondent, an Ohio corporation with its principal office and place of business in Dayton, Ohio, manufactures small electrical motors, grinders and buffers. During at least part of the period in question it was engaged in war work under contract with the United States Army and Navy. In November, 1940, the Union notified the respondent that it claimed a majority representation in respondent's plant, which had between 300 and 400 employees. Shortly thereafter, on or about November 28, 1940, a number of employees took steps to form the B-Line, which later, through its attorney, wrote various letters to respondent, claiming that it had majority representation, and demanding that respondent recognize the B-Line as the exclusive bargaining agent. The respondent communicated with the Board's Cincinnati office, and Lionel J. Silverman, a field examiner of the Ninth Regional Office of the Board, was assigned to investigate the matter. Silverman testified that the B-Line had something over 200 membership cards, to which he had no objection. Under his recommendation an agreement was made between the Union, the B-Line and respondent, by which a consent election was held March 4, 1941, as a result of which the Union was designated as the bargaining representative by a majority of the employees. Thereafter, on June 5, 1941, the respondent executed a collective bargaining agreement with the Union while the B-Line lapsed into inactivity. The contract called for a basic eight-hour day and forty-hour week, with time and a half for overtime, and double time for specified holidays. Except for a five cent per hour wage increase, the terms and conditions of the contract were similar to the respondent's past practices.

At Thanksgiving time in 1941 the respondent, which was then doing 100% war work, received a letter from the War Department, asking it to work on Thanksgiving Day. As the Union contract called for double time on holidays, and as the prices which respondent was entitled to charge had been frozen as of September 1, 1938, under request of the Office of Price Administration, respondent proposed to the Union that the employees work on Thanksgiving Day for time and a half, but the Union refused to accept the proposal. This incident was not mentioned in the findings of either the examiner or the Board. About December 24, 1941, respondent received separate letters from the War and Navy Departments, requesting that it work on New Year's Day, 1942. The letter from the Navy Department closed with this sentence: "Kindly post this appeal in a prominent place for the information of all employees," and the letter was posted in accordance with the request. A poll conducted by respondent showed that practically all the employees were willing to work on the holiday. Respondent wrote the president of the Union, suggesting that the shop work on New Year's Day, and requesting the Union as bargaining agent to waive double time for New Year's Day and agree to work for time and a half. The Union again refused, and this refusal was resented by many employees.

In the latter part of December, 1941, respondent received a request from the Air Corps, as well as the War and Navy Departments, to work overtime. Certain of the work is performed by women, and under § 1008-2 of the General Code of Ohio, women were forbidden to work more than eight hours in any one day or forty-five hours in any one week, or more than six days in a period of seven consecutive days. The respondent wrote the Department of Industrial Relations at Columbus, Ohio, asking permission for women to work more than the statutory maximum, and was granted this permission under date of January 3, 1942, up to and including February 28, 1942. On February 20, 1942, respondent again wrote the Department of Industrial Relations, renewing its request that women be allowed to work overtime, stating that it had made a survey of its women workers and that only one objected to working overtime. This was Pearl James, chief plant steward of the Union, who in February, 1942, filed a grievance with the respondent, protesting on behalf of the Union the working of women more than eight hours any one day or more than forty-five hours in a week. The same woman, as C. I. O. representative from respondent's plant, attended a labor conference at Columbus, which protested against women working overtime. March 4, 1942, respondent received a letter from the Department of Industrial Relations denying the request.

During 1941 respondent reduced working hours of the employees, making the working time of both men and women eight hours a day, thereby eliminating overtime pay. The employees were dissatisfied over loss of the opportunity to work overtime, and in April, 1942, the B-Line resumed its activity, advocating overtime work for both men and women, to be compensated by time and a half. Petitions for overtime were signed by a substantial number of the respondent's employees. August 3, 1942, a second consent election was agreed upon between the respondent, the Union and the B-Line, to be held August 20th. The consent election was postponed by the Board's regional director because of charges of unfair labor practice filed by the Union. These charges grew out of the dismissal of Edith Rowland, an employee whose discharge was found by the trial examiner and the Board in these proceedings not to be unlawful. The B-Line struck in protest of the cancellation of the election for half an hour before closing time on August 20th, whereupon respondent closed the plant for the remainder of the day shift. The members of the B-Line returned to work the following morning.

The trial examiner found that the closing of the plant was a lockout against the employees who were unfavorable to the B-Line. The Board did not agree with this finding. It pointed out that the walkout resulted in considerable confusion and that because of the resulting commotion a number of non-striking employees found it difficult to continue operations. It found on the record that only a few of the plant operations could be performed independently of the well integrated conveyor system, and therefore concluded under all the circumstances that in shutting down its plant on August 20, 1942, the respondent did not violate the Act. However, it found that the respondent's conduct in bypassing the Union and taking individual polls of the employees in December, 1941, and February, 1942, on matters which were proper subjects for collective bargaining, tended to discredit the Union as a bargaining representative and lowered its prestige in the eyes of its constituents, and that by the actions above set forth respondent engaged in a course of subtle opportunism and took advantage of every situation to discredit the Union and support the B-Line revival, thus violating the cited sections of the statute.

Accepting at their fullest value the evidential findings of fact, both those of the examiner approved by the Board and those specifically made by the Board, we think that this order is invalid as a matter of law. There is no substantial evidence that the respondent discouraged membership in the Union. The factory is small, and has no history of labor trouble. When respondent became aware of the C. I. O.'s effort to organize its plant by passing leaflets at the gate in the fall of 1940, respondent's president at once called the foremen and advisory employees in a conference, and instructed them "To keep their hands off the labor situation," that is, "Not to advise for or against." These instructions were repeated periodically in foremen's meetings and in December, 1940, the following announcement was placed on the bulletin board:

"Notice."

"So that there may be no doubt in the mind of anyone concerning the attitude of this Company with regard to the rights of its employees, the following bulletin is being posted:

"Employees of this Company may join any labor organization of their own choosing. Also, they may refrain from joining any or all labor organizations, if such is their desire.

"The Company takes no position in the matter either one way or the other. Each employee must decide this question for himself or herself. Whether you belong or do not belong to a labor organization, you will be accorded the same treatment as any other employee.

"The National Labor Relations Act declares that `Employees shall have the right to self-organization, to form, join or assist...